Abhimanyoo Ram Vs.
State of U.P.& ANR. [2008] INSC 1993 (21 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7211 OF 2008 (Arising out
of SLP [C] No.11251/2008) Abhimanyoo Ram ... Appellant State of UP & Anr.
...
Respondents ORDER R.
V. Raveendran J.
1.
Leave
granted. The respondents though served, remain unrepresented.
2.
The
appellant was enrolled/registered with the Board of Indian Medicine, Uttar
Pradesh on 23.7.2003. He got his name deleted from the State Register of Indian
Medicine so as to enroll himself in another State.
He again sought
re-enrolment in Uttar Pradesh which was granted with prospective effect from
23.8.2007. He was denied interview for selection by the respondents to the post
of Medical Officer, as his re-enrolment did not fulfil the eligibility
requirements. He therefore wanted his registration to be restored with
retrospective effect from the date of original enrolment. He 2 filed a writ
petition before the Allahabad High Court seeking a direction to respondents to
call him for interview for the post of Medical Officer (Ayurved/Unani). In the
said petition, an interim order was granted on 31.10.2007, permitting him to
appear in such interview. By making use of the said interim order, he secured
an order from the Board of Indian Medicine, UP, restoring his enrolment from
the date of initial registration.
Consequently, he was
called for the interview. Thereafter, he moved the court for dismissal of the
writ petition as not pressed. The High Court, on 25.2.2008, accordingly
dismissed the writ petition by the following order:
"Learned counsel
for the petitioner states that petitioner is not interested in pursuing this
writ petition and the same may be dismissed as not pressed.
In view of the
statement so made by the learned counsel for the petitioner, this writ petition
is dismissed as not pressed. Interim Order, granted by this Court dated 31st
October, 2007 stands discharged.
If the petitioner has
participated in the process of selection because of the said interim order
granted in his favour by this Court in this writ petition and ultimately he has
been selected, it goes without saying that such participation in the process of
selection by the petitioner would be rendered illegal, inasmuch as the interim
order of this Court dated 31st October, 2007 stands merged in the final order
of this Court, where under this writ petition has been dismissed. Petitioner
cannot be permitted to draw the benefit from the interim order granted by this
Court dated 31st October, 2007.
State authority is
directed to take appropriate action in the matter and to ensure that in case
the petitioner had been selected/appointed because of participation in the
process of selection under the interim order of this Court dated 31st October,
2007, suitable orders revoking the selection/appointment of the petitioner
shall be issued.
This order may be
communicated to respondent no.1 i.e. Secretary, Karmik, Government of UP,
Lucknow by the learned Statnding Counsel within one week."
3 [emphasis
supplied]
3.
The
appellant is aggrieved by the observation in the said order that he cannot draw
benefit from the interim order and the direction for revocation of the
selection, if any, made in pursuant of the interim order. The appellant claims
that when he made a submission that he did not wish to press the writ petition,
he bona fide thought that the court would merely pass an order simplicitor
dismissing the petition as not pressed. The appellant submits that had he known
that any conditions or directions detrimental to his interest would be added to
the order, while dismissing the petition as not pressed, he would not have
sought dismissal of the writ petition.
4.
The
assumption of the appellant that the High Court has made any unwanted or
unwarranted observation or issued any direction which is uncalled for, while
dismissing his petition as not pressed, is not correct. The High Court has
merely spelt out expressly, the consequences of the dismissal of the writ
petition. Such explicit directions have become necessary to check a raising
trend among litigants to secure the relief as an interim measure, and then
avoid adjudication on merits, particularly in matters relating to examinations
and recruitment. The modus operandi adopted in such matters is as follows: The
litigant approaches the court in 4 the last minute for relief with an interim
prayer. He persuades the court to grant the interim relief by highlighting the
urgency, irreparable loss and balance of convenience. He obtains interim relief
and secures the desired benefit with the help of such interim order. Once the
purpose of securing the interim order is achieved (particularly where the
interim order granted is the same as the final relief prayed), he makes an
innocuous submission to the court that he does not want to press the petition
and gets the matter disposed of, thereby achieving the goal of securing relief
without adjudication. He takes advantage of the fact that invariably courts do
not spell out the consequences, when dismissing the petitions as not pressed.
The result is that in many cases, a litigant who would not get the relief on
detailed scrutiny of his claim during a contested final hearing, gets away with
undeserved relief secured by way of an interim order.
5.
Any
attempt by a litigant to retain the benefit of the interim order by avoiding
final adjudication, requires to be deprecated. In fact, it requires to be dealt
with sternly. Courts should bestow caution while dismissing cases where interim
relief had been granted, as not pressed or as withdrawn. The courts cannot
proceed on the assumption that all concerned would know about the legal
consequences of dismissal and therefore, it is not necessary to make any order
in regard to the interim relief already granted. Even 5 though the legal
effect of dismissal on withdrawal, is vacation of the interim order, the
concerned respondents not being aware of the legal consequences, will not take
consequential action but continue the benefit extended to the petitioner by the
interim order, unless there is a specific direction spelling out the
consequences. Sometimes, the concerned departmental officials, on account of
collusion with the petitioners who had obtained the interim relief, will not
withdraw or reverse the benefit granted to the petitioner in pursuance of the
interim order, when the petition is withdrawn or dismissed as not pressed.
Therefore, appropriate consequential directions cancelling or vacating the
interim order should be passed so as to restore status quo ante.
In cases where the
prayer for dismissal (as not pressed or withdrawn) is made even before the
respondent is served, then the order vacating the interim order should be
communicated to the authority against whom the interim order was issued, so that
any benefit extended as a consequence of the interim order, can be withdrawn or
reversed. The only exception is where the respondents agree for the continuance
of the interim order as a final relief, or agree that the benefit of the
interim order already granted need not be disturbed, in which event, the court
should record such submission and pass appropriate consequential orders.
6.
In
this case, the High Court has taken care to issue appropriate consequential
directions by vacating the interim order. The directions are not unwarranted
additions. In the usual course such an order would not have called for
interference. But there is need to interfere with the order.
Fairness to the
litigant requires that the court, when a request for dismissal is made, should
inform or indicate to the petitioner or his counsel that as a consequence of
such dismissal, the benefit of the interim relief already granted will be
revoked or withdrawn. It is possible that a litigant may make a prayer for
withdrawal without any ulterior design or motive, and that he would not have
sought dismissal of the petition at all, if he had known that the benefit of
the interim order will be withdrawn as a consequence of the dismissal. The
Court cannot assume, that in every case where a request for withdrawal is made,
the request is a dishonest attempt to avoid adjudication after securing the
benefit of an interim order. If the court fails to inform the petitioner about
the consequential directions proposed while dismissing the petition as not
pressed, before making the order, there is every likelihood of the petitioner
being denied the choice of proceeding with the case. In law, no doubt, a party
withdrawing or not pressing a petition, is presumed to know the legal
consequences thereof. His counsel is also expected to advice him. But it does
not follow that the court need not inform the petitioner
7.
7
about the consequential directions which it proposes to issue, when dismissing
a case on his request.
8.
In
this case, the appellant was not put on notice about the consequential
direction to be issued on acceptance of the request for withdrawal, nor given
the option of continuing with the case, if he did not want dismissal of his
petition with any added directions. To that extent it can be said that there
has been violation of a facet of principles of natural justice.
9.
We
therefore allow this appeal and set aside the order dated 25.2.2008 of the High
Court and restore the writ petition to the file of the High Court, with
permission to the Appellant to pursue the writ petition in accordance with law.
...............................J.
(R. V. Raveendran)
.................................J.
New
Delhi;
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